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Former Pa. Attorney General: Tim Curley and Gary Schultz Charges should be Dismissed

The law partner of a Penn State Board of Trustees candidate has attempted to convince a judge the criminal charges against two former university administrators be thrown out.

Bob Jubelirer is a partner with the Obermayer Rebbman Mixwell and Hippel law firm and a board of trustees candidate. In December, a partner at Jubelirer’s law firm, Walter Cohen, filed an affidavit with Dauphin County Common Pleas Court on behalf of Penn State’s former Athletic Director Tim Curley and retired Senior Vice President for Finance Gary Schultz.

In the affidavit, which the court recently unsealed, Cohen, former acting attorney general and first deputy attorney general in Pennsylvania, says Curley and Schultz’s rights have been violated through the criminal proceedings.

At issue is the controversial role former Penn State General Counsel Cynthia Baldwin played in the grand jury proceedings for the Sandusky scandal. Curley and Schultz say they believed she was their personal attorney and therefore her testimony before the grand jury, which is believed to be damaging to the defendants, violated attorney-client privilege. The result, defense attorneys argue, is that criminal charges should be thrown out and their grand jury testimonies suppressed in any criminal trial.

Cohen agrees, saying, “Mr. Curley and Mr. Schultz suffered the complete deprivation of their rights to counsel. In fact, the harm to them was even worse if they had no counsel at all. They believed they had an attorney who would protect their interests. The result here was a miscarriage of justice that improperly led to criminal charges being placed against two witnesses whose rights were violated.”

Jubelirer said he was unaware Cohen submitted the affidavit to the court until reading about it in news reports this week. He also noted he works in the firm’s Altoona office and does not have any involvement with Cohen’s clients or practice. At the same time, Jubelirer says he supports Cohen’s assessment.

“My reaction is that Walter, a well-respected former acting attorney general, has raised some important legal questions that should be resolved,” Jubelirer says.

In the trustee election, Jubelirer is backed by Penn Staters for Responsible Stewardship, or PS4RS. A goal of PS4RS is to remove board members “who were responsible for the mishandling of the university’s role in and response to the Jerry Sandusky saga,” according to the group’s mission statement.

Separately, civil rights and criminal defense attorney David Rudovsky, who teaches law of the University of Pennsylvania, filed a similar document on behalf of former Penn State President Graham Spanier, who also faces criminal charges.

“Dr. Spanier had every reasonable basis to believe that he was represented by Ms. Baldwin. She had informed him that she was his lawyer; the court and (Office of Attorney General) assumed this to be true; her appearance in the grand jury could not be justified on any other basis; and both Ms. Baldwin and the prosecutor stood silent as Dr. Spanier stated she was his lawyer,” Rudovsky wrote.

Rudovsky said that Spanier’s attorney, Elizabeth Ainslie of Philadelphia, asked him to review details in the case and draft an independent opinion, which Ainslie also confirmed. Rudovsky says he’s often asked to offer his expert opinion in various cases, including civil rights and criminal cases. He declined to comment further on the filing.

Prosecutors argue Baldwin’s testimony was not part of the evidence used to establish probable cause during the defendants’ preliminary hearing therefore the prosecution has a legitimate case. The prosecution also says the defendants’ claim Baldwin had a conflict of interest by representing both the defendants and Penn State is wrong. Instead, they say the defendants and Penn State shared interests.

Additionally, the agency argues that any advice Baldwin provided the defendants would not have changed the outcome of the grand jury investigation. And if the defendants assumed Baldwin represented them individually, the agency says the claim of an attorney-client privilege violation still does not exist due to a crime-fraud exception.

Dauphin County President Judge Todd Hoover is presiding over the case for Spanier, Curley and Schultz. The men face several criminal charges including perjury, failing to report child endangerment and conspiracy. The criminal proceeding is taking place in Dauphin County because that is where the grand jury met and where the charge of perjury allegedly occurred.

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